Cressman v. Thompson
2015 U.S. App. LEXIS 13612
| 10th Cir. | 2015Background
- Oklahoma redesigned its standard license plate via a 2007 Task Force to improve readability and promote tourism, selecting a Native American image based on Allan Houser’s Sacred Rain Arrow sculpture.
- Keith Cressman objects to the Native American image as conveying pantheistic messages and thus claims compelled speech violation of his First Amendment rights.
- Cressman covered the image on his plates and was advised that concealment could be illegal; he later obtained specialty plates at higher cost.
- He sued under 42 U.S.C. § 1983 in 2011 asserting compelled display and related rights; district court dismissed for lack of a plausible compelled-speech claim despite standing.
- On remand, after discovery, the district court concluded the image alone did not convey a message and dismissed; this court affirmed, applying law-of-the-case findings from an earlier panel decision.
- The case centers on whether the Native American image on Oklahoma’s plates is protected speech and whether forcing display or payment for alternatives violates the First Amendment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Cressman’s claim barred by standing or law-of-the-case? | Cressman has standing based on threat of enforcement and incurred costs. | Defendants contend standing and law-of-the-case issues preclude new review. | No; standing affirmed and law-of-the-case controls. |
| Does the Native American image on the standard plate constitute government speech, pure speech, or symbolic speech? | Cressman argues image is private speech (pure or symbolic) subject to compelled-speech limits. | Defendants argue government speech or mass-produced image limits First Amendment scrutiny. | Image is symbolic speech; not pure speech; but government-speech rationale does not defeat compelled-speech claims here. |
| Has Oklahoma forced Cressman to speak a message he objects to? | Cressman objects to pantheistic implications of the image. | Any objection is to the government’s overall message; no identifiable private-message conveyed. | Cressman fails to show a compelled speech violation because he does not object to the message a reasonable observer would discern. |
| Does Walker v. Texas (government-speech framework) alter the compelled-speech analysis? | The majority declines to rely on Walker to avoid compelled-speech analysis; analyzes under traditional compelled-speech framework. | ||
| What is the correct standard for determining whether an image on a license plate is speech? | Hurley/Spence-Johnson require identification of a perceivable message. | Mass-produced images may not be treated as pure speech; context matters. | Image is symbolic speech with communicative content, but the relevant message is not objectionable by Cressman; thus no compelled-speech violation. |
Key Cases Cited
- Wooley v. Maynard, 430 U.S. 705 (1977) (compelled display on license plates; government cannot compel private speech)
- Spence v. Washington, 418 U.S. 406 (1974) (requires intent to convey a message and likelihood message understood)
- Texas v. Johnson, 491 U.S. 397 (1989) (expressive conduct; Spence-Johnson test framed for symbolic speech)
- Hurley v. Irish-American Gay, Lesbian, & Bisexual Group of Boston, 515 U.S. 557 (1995) (context of symbolic speech; not every expressive act requires a particularized message)
- Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239 (2015) (license-plate graphics as government speech; but private speech rights still implicated)
- Barnette v. West Virginia State Board of Education, 319 U.S. 624 (1943) (compulsory flag salute as speech; foundational compelled-speech principle)